Case Reference: 3164961

Appeal Decision
Inquiry held on 3 and 5 September 2019 and 28 to 31 January 2020
by Diane Lewis BA(Hons) MCD MA LLM MRTPI
an Inspector appointed by the Secretary of State
Decision date: 6 April 2020
Appeal Ref: APP/P0240/W/16/3164961
Land to the west of Langford Road, Henlow, Bedfordshire SG16 6AF
• The appeal is made under section 78 of the Town and Country Planning Act 1990
against a refusal to grant outline planning permission.
• The appeal is made by [APPELLANT] against the decision of Central
Bedfordshire Council.
• The application Ref CB/16/02721/OUT, dated 8 July 2016, was refused by notice dated
6 October 2016.
• The development proposed is up to 135 residential dwellings (including up to 35%
affordable housing), introduction of structural planting and landscaping, informal public
open space and children’s play area, surface water flood mitigation and attenuation,
vehicular access points from Langford Road and associated ancillary works.
• This decision supersedes that issued on 16 August 2018. That decision on the appeal
was quashed by order of the High Court on 29 January 2019.
DECISION
1. The appeal is dismissed.
PART 1
2. This section deals with several matters to provide the necessary background to
the reasoning on the main issue.
The Appeal
3. The appeal is being redetermined after the appellant’s successful section 288
challenge of the original appeal decision1. The judgement was directed to a
single ground2. The Court concluded that the Inspector erred in law in his
failure to properly grapple with and provide reasons for departing from the
earlier conclusions of Inspectors addressing the same issues in respect of Policy
DM4, and in particular the conclusions of the Inspector in the most recent
Meppershall appeal3.
4. After consideration of the submissions by the appellant and the Council I intend
to determine the appeal afresh and not to confine my attention to reviewing
the quashed decision, which now has no legal effect. However, the quashed
1 Gladman Developments Limited v Secretary of State for Housing Communities and Local Government and
Central Bedfordshire Council [2019] EWHC 127 (Admin)
2 Op cit paragraph 13: whether the inspector erred in considering the true nature of the decision in the Daventry
case and whether it had a material consequence aa to the merits of whether Policy DM4 was out of date, or
alternatively that he failed to give adequate reasons for departing from the judgement formed by inspectors in
earlier appeal decisions that the policy was out of date.
3 OP cit paragraph 39
decision is a material consideration. The Council drew my attention to the
principle of consistency to which I will have full regard4.
5. Since the original decision in 2018 the evidence presented by the appellant and
the Council has been reviewed and updated, taking into account the changes to
national planning policy in the National Planning Policy Framework and the
revisions to the Planning Practice Guidance. Supplementary evidence was
submitted to address the reasoning in the quashed decision on the issue of
character and appearance, which covered landscape character, visual impact
and coalescence. The ‘library’ of appeal decisions on proposed residential
development in Central Bedfordshire and other local authority areas were
updated regularly. After the close of the inquiry the Council drew my attention
to two further appeal decisions, which were then forwarded to the appellant. I
did not consider it necessary to invite submissions because the main parties
had set out their cases comprehensively on the matter of ‘most important
policies’ and the 5 year housing land supply (5YHLS) and the decisions raised
no new matters.
6. I confirmed with the appellant and the Council that an accompanied site was
not necessary, given that access onto the land was not required and everything
that needed to be seen of the site and surrounding area could be viewed from
publicly accessible places including public rights of way. I am satisfied that the
unaccompanied visits I made to the area enable me to come to a suitably
informed decision.
The Proposal
7. The planning application was made in outline. Appearance, landscaping, layout
and scale are reserved matters. Approval is sought for access at this stage,
although confined to details of the main site access. There are two plans
submitted for approval: the location plan and the amended plan of the layout
of the proposed junctions onto Langford Road5.
8. At the inquiry the appellant confirmed that the development framework plan
and the masterplan are for illustrative purposes only. The purpose of the
illustrative masterplan is to provide one iteration of how the site could be
developed with 135 dwellings and associated infrastructure, indicating key
urban design principles. The figure of 135 dwellings was used for assessment
purposes in the technical reports and is accepted as a maximum in the current
proposal.
9. A unilateral undertaking, dated 18 May 2018 and made under section 106 of
the 1990 Act, was given by the landowner and the appellant to the Council to
secure affordable housing, open space and contributions towards education,
transport and leisure facilities. A deed of variation dated 30 January 2020
updated details of wording, amended the contributions towards sports facilities,
clarified the educational establishments that would provide additional capacity
and introduced a waste and recycling contribution. The Council accepted that
the planning obligations (as varied) satisfactorily address the second reason for
refusal.
4 RD8 paragraphs 1-3 and RD25 paragraphs 1-4 and related judgements including Davison v Elmbridge [2019]
EWHC 1409 (Admin)
5 Location Plan ref 6701-L-01 C and Access Plan 4746/40/01B
10. The location plan identifies in red the application site of 6.29 hectares (ha) and
to the west in blue an area of adjacent agricultural land in the same ownership
(approximately 1.12 ha6) (the blue land). When determined by the Council and
at the time of the first appeal the blue land was proposed as a community
park, to complement the open space on the site. It was proposed to be
managed as part of the open space, as set out in the unilateral undertaking.
The Inspector in the quashed decision observed that there was no certainty
how the community park would be provided7.
11. In the updated written evidence the term community park has been deleted
and soft landscape enhancements are proposed. The final confirmed position is
that the blue land would be seeded with wild meadow grass, have some small
measure of woodland planting and be subject to a mowing and management
regime. Public access will be granted to it and across it8. The appellant
maintained that there would be no material change in the use of the blue land.
12. The appellant explained the blue land was excluded from the residential site for
two reasons. A small area falls within an Important Countryside Gap and
secondly because of its location in the flood plain. A condition requiring the
submission of a scheme of landscaping on the blue land was likened to an
approach found satisfactory by the Secretary of State elsewhere.
13. I consider the position on the blue land remains unclear. The blue land is
included within the Open Space area as defined in the undertaking9. With
reference to Schedule 2 the Open Space has to be used for purposes of public
recreation and amenity. Reading the document as a whole the blue land is to
be used only for public recreation and amenity, which to my mind exclude use
for agriculture. This use would be consistent with the description of the blue
land as a ‘community park’ in the original proposals.
14. No planning condition was put forward by the appellant specific to the
landscaping of the blue land. More importantly the appellant did not
satisfactorily address how the open space use would be authorised in planning
terms given the existing agricultural use of the land and the exclusion of the
blue land from the application for development. Alternatively, ‘agriculture’
includes use as meadow land10. If the blue land is now intended to remain in
agricultural use, the appellant did not take the opportunity to clarify and
confirm the future agricultural use of the land through the deed of variation.
15. A consequence of this lack of clarity is uncertainty over the future use and
contribution of the blue land to the landscaping and green infrastructure as
part of the residential development and hence the effect on the setting of the
village.
16. A screening direction was issued dated 20 September 2017 under the Town
and Country Planning (Environmental Impact Assessment) Regulations 2017
(the EIA Regulations). In exercise of the powers conferred by Regulations
14(1) and 7(5) of the EIA Regulations, the Secretary of State directed that the
development is not Environmental Impact Assessment development.
6 GDL 3/PS paragraph 2.8
7 Decision dated 16 August 2018 paragraph 51
8 RD26 paragraph 79
9 ‘the Open Space’ means the informal open space and landscaping including the Play Area for use by the general
public to be provided on the Site and the land edged blue on the Plan in accordance with the Planning Permission
and the Open Space Works Specification (clause 1.1.39)
10 Meaning of agriculture, section 336 of the 1990 Act
Planning Policy
17. The development plan includes:
• The saved policies of the Mid Bedfordshire Plan First Review (2005).
• The Central Bedfordshire Core Strategy and Development Management
Policies adopted in 2009 (the CSDMP).
• The Central Bedfordshire (North) Site Allocations Development Plan
Document (2011).
18. There is not a single adopted Local Plan in place that covers the whole of the
Central Bedfordshire Area. The CSDMP relates to the north part of the authority
area only. The appeal site is not allocated for development within the Site
Allocations DPD, a factor that carries no particular weight in this appeal.
19. The Central Bedfordshire Landscape Character Assessment January 2015 (the
CBLCA) is a revision to the previous Landscape Character Assessment for the
county of Bedfordshire in response to the change in administrative boundaries.
20. The Local Plan for Central Bedfordshire will set out the strategy for the area for
the period 2015 to 2035. The initial examination sessions on the emerging
Local Plan were completed in July 2019. Further work including a review of the
Sustainability Appraisal is ongoing and reconvened hearings are expected to
take place later in the year. In view of stage reached in its preparation and the
likelihood of modifications, the emerging Local Plan and policies have limited
weight. I will rely on the policies in the adopted development plan.
21. Material considerations include the National Planning Policy Framework (the
Framework) and Planning Practice Guidance.
22. The Framework in paragraph 11 states that decisions should apply a
presumption in favour of sustainable development. For decision taking this
means approving development proposals that accord with an up-to-date
development plan without delay; or where there are no relevant development
plan policies or the policies which are the most important for determining the
application are out-of-date, granting permission unless ….. (ii) any adverse
impacts of doing so would significantly and demonstrably outweigh the
benefits, when assessed against the polices in this Framework taken as a whole
(known as the tilted balance).
23. Therefore for the purposes of paragraph 11 deciding whether the most
important polices are out-of-date is essential. This involves consideration as to
whether policies may have been overtaken by things that have happened since
the plan was adopted, either on the ground or in some change in national
policy, or for some other reason. This assessment can be either a matter of fact
or a matter of both fact and judgment.
24. The Framework in paragraph 213 also states that existing policies should not
be considered out-of-date simply because they were adopted or made prior to
the publication of the Framework. Due weight should be given to them,
according to their degree of consistency with the Framework.
25. Having identified the most important policies and examined each policy to
decide whether or not it is out-of-date, it is then necessary to assess all of the
basket of most important policies in the round to determine whether, taken
overall, they could be concluded to be out-of-date.
Most important policies
26. The Council considers that the most important policies for determining the
appeal are: CS2, CS7, CS14, CS16, DM3 and DM4, which are the policies cited
in the reasons for refusal. The appellant considers that Policies CS1, CS5, CS6
and DM14 should be added to the list of most important policies for
determining the appeal11. The appellant considers Policies CS1, CS5, CS6 and
DM4 are out-of-date12.
27. In my view there is a distinction between the ‘relevant policies’ and the ‘most
important policies’ for determining the application/appeal. In this case, relevant
policies include those that set the scene or context, the development control-
type policies and those that cover matters that are not controversial in respect
of the development, bearing in mind the outline nature of the application. Most
important policies are those that directly concern the determining issue(s) in
dispute.
28. In this respect it is worth going back to the quashed decision which clearly
focuses on the effect on character and appearance and Policies DM4, CS14 and
CS16. I consider this remains the position. In essence, if no harm is found to
local character and appearance, or the effects are positive, the appeal probably
would succeed. In this a parallel may be drawn with the Clifton appeal
decision13. The volume of material on the 5YHLS that has been submitted
provides the context, informs the balancing exercise, as well as potentially
being a determining factor in whether or not to apply the tilted balance.
29. In conclusion the most important policies for determining the appeal are
Policies CS14, CS16 and DM4. Policies CS1, CS2, CS6, CS7, DM3 and DM14 are
relevant policies. They cover the topics of development strategy, developer
contributions, delivery of housing, affordable housing, high quality
development and landscape and woodland. Policy CS5 has little relevance
because it provides a framework for distribution of growth through the Site
Allocations DPD and adds little to Policy CS1 in respect of the current proposal.
A similar conclusion was reached by the Inspector in the quashed decision.
30. The statement of common ground also identified Polices CS3, CS4, CS13,
CS15, CS17, CS18, DM1, DM2, DM10, DM15, DM16 and DM17 as relevant
policies. They cover the topics of healthy and sustainable communities,
accessibility, housing mix, responding to climate change, heritage including
archaeology, biodiversity, green infrastructure and greenspaces. They would
inform the planning conditions in the event of a grant of planning permission.
Examination of policies
31. Policy CS14 requires development to be of the highest quality. The first bullet
point is particularly important to the outline proposal because it refers to
respecting local context, the varied character and local distinctiveness of Mid
Bedfordshire’s places in design and the use of a range of urban design tools. It
is consistent with the Framework’s policy to create high quality buildings,
11 The Council and the appellant in their closing submissions used the word ‘appeal’ and not ‘application’.
12 RD26 paragraph 6
13 CD 15.23
ensuring development will function well and add to the quality of the area, are
sympathetic to local character and history, and optimise the potential of the
site. The policy is not out-of-date and has full weight.
32. The site is in a rural, countryside location. In summary Policy CS16 Landscape
and Woodland seeks to conserve and enhance the varied countryside
character, local distinctiveness and landscape features, with particular
reference to the Chilterns AONB and the Forest of Marston Vale. The CBLCA is
now the relevant document, not the Mid Bedfordshire Landscape Character
Assessment cited in the policy. This update does not have any significance for
current purposes14. There is consistency with the Framework which requires
policies and decisions to contribute to and enhance the natural and local
environment. One of the stated ways of doing so is by recognising the intrinsic
character and beauty of the countryside and the wider benefits from natural
capital and ecosystems, including the economic and other benefits of the best
and most versatile agricultural land and of trees and woodlands. The policy is
not out-of-date and has full weight.
33. I have focused on Policy CS16 rather than the companion Policy DM14 because
CS16 was cited in the first reason for refusal and also because of the outline
nature of the application. Policy DM14 adds very little but even if included as a
most important policy it is not out-of-date for similar reasons.
34. Policy DM4 addresses development within and beyond settlement envelopes.
Much of the policy is concerned with encouraging community facilities and
allowing housing, employment and other settlement related development
within the envelopes of a hierarchy of settlements, identified through Policy
CS1, in order to promote sustainable communities. Provision is also made for
certain types of recreation and community related facilities adjacent but
outside the envelope. Otherwise, limited extensions to gardens is identified as
the only potentially acceptable form of development beyond settlement
envelopes.
35. The reasoned justification to Policy DM4 explains that the settlement envelope
reflects the character of the predominant land use, using the most appropriate
and clear physical features on the ground. Envelopes are not an attempt to
define the extent of a particular town or village community and they are to
assist in consistent application of policies in controlling development.
Settlement envelopes are also a means of protecting the physical identity and
separate character of places. Particular reference is made to Policy CS7, which
supports proposals for 100% affordable housing and allows for exception
schemes adjacent to settlement envelopes, providing certain criteria are met.
Critically, the purpose of the policy is not to identify land for meeting the
housing requirements, a matter for a Site Allocations Development Plan
Document.
36. Developing sustainable communities and enhancing local character are
consistent with policies in the Framework to enhance and maintain the vitality
of rural communities, identifying opportunities for villages to grow and thrive
and, as noted above, to respect local character and history, recognising the
intrinsic character and beauty of the countryside. The use of settlement
envelopes is not precluded by the Framework.
14 The appellant sought to attach importance to the policy reference being to the earlier Landscape Character
Assessment but did not pursue the matter in the updated evidence in December 2019.
37. Inspectors have concluded that Policy DM4 shows some inconsistency with the
Framework in so far as it does not distinguish between different landscapes or
protect landscapes commensurate with their status. I do not see this as a
primary purpose of this policy and would look rather towards Policy CS16.
Moreover, the policy itself does not state the countryside will be protected for
its own sake. The policy has also to be read alongside other policies in the plan.
There is not a blanket ban on development in the countryside - for example
Policy DM12 provides for commercial development on horticultural or
redundant agricultural sites in the countryside.
38. In Central Bedfordshire a significant amount of residential development has
been granted planning permission beyond settlement envelopes. The appellant
argues that this indicates the policy is out-of-date because it was not
formulated to allow for the requirement of the Framework to boost the supply
of housing provision. I recognise that since the plan was adopted the housing
requirement has increased and the role and extent of settlements probably
would be reviewed in the preparation of a new plan. However, as explained
above, the objectives and purposes of the policy are broader than housing
provision.
39. To summarise, Policy DM4 is not fully consistent with the Framework or the
scale of development now taking place in the District. Nevertheless, the policy
is not ‘very restrictive’ as claimed by the appellant and accommodates
sustainable development based on objectives that are consistent with the
Framework. I conclude the policy is not out-of-date and has moderate weight.
Appeal decisions
40. I have referred to all the appeal decisions submitted as documents in coming to
the above conclusions. In doing so I have taken account of the differing appeal
procedures and cases, the amount of detail in the reasoning, the decision date
and the national planning policy current at the time of the decision. In the
revised Framework published in July 2018 paragraph 11 became the key
paragraph on the presumption in favour of development (formerly paragraph
14). Significantly in paragraph 11(d) the out-of-date test relates to ‘most
important policies for determining the application’, replacing ‘relevant policies’
in the 2012 Framework.
41. The earlier appeal decisions varied in the policies considered to be out-of-date
and the approach taken in respect of Policy DM4, generally where much of the
dispute focussed. The Meppershall decision15 (cited in the challenge) was one
where DM4 was found to be out-of-date, based mainly on the policy’s blanket
protection of the countryside outside settlement boundaries and its effect to
frustrate the ability to achieve a 5YHLS. The Inspector noted a similar
conclusion was reached in several other decisions (including Silsoe and
Stotfold) and distinguished his finding from those where a different conclusion
was reached16.
42. Since the Meppershall decision in May 2018 the understanding of the objectives
of Policy DM4 has evolved. Following the publication of the revised 2018
Framework the common theme is one where Inspectors, who have considered
the matter in any detail and come to a conclusion, have supported the
15 CD 14.29
16 op cit paragraphs 17 to 23
Council’s case and attached moderate weight to the policy. There is no instance
where Policy DM4 was found to be out-of-date.
43. As to the policies identified as ‘most important’, the probability is that the
details of the proposal, the evidence presented and issues in dispute have been
very relevant considerations and therefore Inspector’s conclusions could differ.
However, significantly in all decisions post June 2019, where a firm conclusion
was reached, none of the policies identified as most important were found to be
out-of-date. There is no support for either Policy CS1 or Policy CS5 being a
‘most important policy’. Full weight is attached to Policy DM14. I note the
appellant’s reliance on appeals where Policy CS5 was found to be a relevant
policy and out-of-date but those conclusions were based on the paragraph 14
test in the 2012 Framework.
Conclusion
44. The most important policies for determining the appeal are Policies CS14, CS16
and DM4. When taken as whole, these policies are not out-of-date for the
purpose of the decision and the tilted balance is not triggered.
45. The tilted balance may apply if the Council cannot demonstrate a five year
supply of deliverable housing sites, an issue I will consider in detail later in the
decision.
PART 2
Main Issue
46. In light of the common ground between the appellant and the Council, the
main issue centres on whether the proposal would promote sustainable
development in the rural area, having particular regard to (a) the effect on
landscape character including settlement pattern and on the appearance of the
area, and (b) the contribution to local housing requirements, including
affordable housing. Additional planning matters to weigh in the balance include
the effect on the best and most versatile agricultural land; the effects on
community services, facilities, green infrastructure and open spaces; the ability
to offer a genuine choice of travel modes and accessibility to employment,
services and facilities.
Reasons
Character and appearance
Site context
47. The site is in the countryside, outside and immediately to the north of the
boundary to the settlement envelope for Henlow17. The boundary to the south
eastern corner of the site adjoins residential properties within the envelope on
Langford Road but the remainder of the southern boundary adjoins the
designated Important Countryside Gap between Henlow and Clifton (Policy
CS21 of the Mid Bedfordshire Plan First Review). A small ribbon of development
lies immediately to the north of the site.
48. The land has no formal landscape designation. The Council and the appellant
agree that the site is not a ‘valued landscape’ within the terms of the
17 CD 8.12 Henlow Inset 28 (Proposals Map)
Framework (paragraph 170(a)). Nevertheless, landscape does not have to be
designated to be of value and may be of value locally for a variety of reasons.
The loss of undesignated countryside is capable of being harmful in the
planning balance.
49. There is a good network of public rights of way in the locality, enhanced by
permissive paths. Walks are promoted by information leaflets and on my site
visits the paths were well used by people enjoying informal recreation in the
countryside surroundings. I agree with the Council that this community use
adds value to the natural and local environment.
50. With reference to the CBLCA, the site lies within the Landscape Character Type
4: Clay Valleys and Landscape Character Area 4C: Upper Ivel Clay Valley (the
LCA). The level lowland of the LCA is characterised by mixed land use,
predominantly of arable farmland with some pasture along the river courses,
plus substantial areas of settlement. The large and medium scale geometric
arable fields are bounded by hedgerow in mixed condition with some hedgerow
trees, with more intimate scale pastoral fields along the River Ivel. Long views
over the flat arable fields are sometimes interrupted by abrupt settlement
edges. The wide views contrast with the more intimate enclosed views along
the river corridors.
51. Expansion of towns and villages has been a feature of recent landscape
change. Within the LCA large villages and market towns have extended along
the connecting roads. Settlement is almost continual between Shefford, Clifton
and Henlow.
52. The settlement analysis in the Design and Access Statement shows that
historically Henlow was linear in form. New Town to the north consisted of a
small group of buildings at the junction with Stockbridge Road. The short row
of properties to the north of the appeal site are dated to sometime between
1921 and 1938. The growth of the village mainly occurred in the 1980s, with
expansion more especially at its southern end and to the east. Expansion of
New Town followed slightly later. Planning permissions from around 2010 have
been for proposals of between 11 and 29 dwellings on sites towards the south
of the village18. Despite the growth, the village retains a linear form and the
main area of development is close to the historic core.
53. The appeal site is a medium size arable field bounded by hedgerows in mixed
condition with some hedgerow trees, including a mature hedgerow along
Langford Road. A greater degree of tree cover is present along the watercourse
forming the boundary to the blue land. Baulk Wood lies immediately to the
north. The site is integral to the landscape setting of the village and has typical
characteristics that contribute to and distinguish the LCA.
54. The appellant describes the character of the site and its immediate context as
urban (or settlement) fringe. This is not a description I would choose. The
dense settlement of medium and large scale villages occurs to the west of
Henlow. In contrast north of Henlow the ‘urban’ development in the locality has
little influence on the site and, as the Inspector observed in 2018, the ribbon
development on Langford Road is limited in extent. In my opinion the wind
turbines in the distance or the small number of floodlights visible at the football
18 RD4
ground to the north, features particularly highlighted by the appellant, do not
have a strong presence or influence on the local character.
55. Settlement is visible but to the west of Langford Road there is an abrupt
change at the settlement edge to arable farmland. To the east lie the
pastureland and meadowlands along the River Ivel. There are open views
across the farmland, interrupted by blocks of woodlands and hedgerow field
boundaries. The working farmsteads at Stockbridge Farm and Kingfisher Farm
emphasise the agricultural land use. With reference to the CBLCA development
guidelines, Langford Road is a secondary road. The Council’s landscape officer
made a good point in saying this highway does not bring an urban quality to
the site but provides road users with rural views. I consider the site and its
immediate context are more heavily influenced by rural attributes and have a
rural character.
56. In summary, I agree with the appellant that the landscape is not of any
particular scenic quality yet neither is it unattractive. The site and its
immediate context include features and characteristics which are typical of the
local landscape character and is generally representative of the wider
landscape character area. Little physical change has occurred since the
consideration of the proposal and the decision in August 2018.
Landscape and Visual Appraisal
57. The illustrative plans demonstrate the scale of the proposal and that up to 135
dwellings could be accommodated within a landscaped site. The plans give an
idea of the balance between the amount of land that would be occupied by built
development as opposed to the soft landscape and green infrastructure. They
do no more, given the basic outline application. It is not possible to draw firm
conclusions about the layout, design and landscaping of the proposed
development. My assessment proceeds on this basis. The appellant’s
assessment of landscape and visual impact, which is based on the illustrative
layout of buildings and open spaces, has been treated with due caution.
58. The appellant expected that the development would be built out in totality over
two to three years19 and that newly planted trees would grow sufficiently to be
above the heights of new houses after about ten years. The retained tree stock
would require management. The illustrative landscape and green infrastructure
proposals indicate structural planting would be mainly on the western side of
the site and into the blue land. However, a full understanding of the landscape
contribution is dependent on details of a landscaping scheme and an
implementation and management programme. I have already explained why
there is a lack of clarity and uncertainty in the use and contribution of the blue
land to the scheme.
Effect on character
59. The proposed residential development would bring a very substantial change to
the use of the land and to the type and level of activities there. The scheme
would result in buildings, highways and new engineered access arrangements,
lighting and other infrastructure, domestic gardens, planting and amenity
spaces of varying degrees of informality. In short, the land would change from
an agricultural field that forms part of the wider countryside to a housing estate
19 This time period was given in oral evidence in the round table discussion on landscape character. A build
programme of three to four years is given in GDL 4 UPDATE/PS paragraph 12.1.7.
of up to 135 homes. The issue is whether or not this change would be
undesirable.
60. I agree with the appellant that the development alone would result in little
harm to the balance of the key landscape characteristics across the LCA as a
whole, whether in the short or longer term. Nevertheless, it is more helpful to
consider the changes on the site and its immediate context in order to
understand the likely effects on the landscape and the settlement character.
61. The land is not in a designated countryside gap and nor would the development
result in coalescence between Henlow and Langford. However, that does not
mean that the site should be seen as an opportunity to link the existing ribbon
development along Langford Road to the north and south of the site. The
northern outlier has been physically separate from the village for many years
and there is no evidence of a policy or community objective to incorporate the
building group to unify the village settlement.
62. The aerial overlay20 clearly demonstrates the size of the site in comparison to
its surroundings. A simple measurement of the depth of the site fails to convey
the proposed extent of built form across all the site area. The proposed amount
of housing development contrasts sharply with the small scale fragmented
ribbon development along Langford Road. Newtown, to the south of
Stockbridge Road, is well related to the core of the village. North and west
along Stockbridge Road the residential properties are primarily frontage
development and at the western end have large open gardens to the rear.
63. The site context has shown how the countryside area north of Henlow is
important to the identity and setting of the village. The proposed residential
development, by reason of its very significant size, would encroach in a harmful
way into an area that provides important separation between Henlow and
Langford and which has been less affected by urbanising influences. This would
be an outcome that the development guidelines in the CBLCA seek to avoid.
64. Along Langford Road, the field boundary to the site is formed of a mature
hedgerow of largely native species (predominantly hawthorn), as well as
individual trees, secondary vegetation and a ditch. Adjacent to the highway is a
green verge, street lighting and narrow metalled footway. The hedgerow has
two gaps that allow for access by agricultural vehicles and which also provide
glimpses into the field behind. The hedgerow boundary is a feature typical of
the surrounding countryside and contributes positively to the rural character of
the road.
65. The proposal would result in two new access points from Langford Road into
the new residential area to the west, in different places to the existing gaps.
Each access would be formed by a carriageway of 5.5 metres (m) with a 2.0 m
footway each side and with visibility splays of 2.4 m x 215 m. The highway
works would require the removal of two 20 m sections of hedgerow. Additional
pedestrian links are proposed onto Langford Road21. The highway authority has
requested physical measures to help reduce speed such as a village gateway,
raised table junctions and vehicle actuated signs22.
20 GDL 3/A Appendix 3
21 RD1 The statement of common ground at paragraph 2.3.2 states two pedestrian access points are proposed
from Langford Road
22 A planning obligation makes provision for a contribution towards a Traffic Regulation Order for reducing the
speed limit on Langford Road.
66. All these elements, not only the physical form but the associated activity,
would contribute to a harmful loss of rural character. The appellant indicates
new dwellings would be set back behind a broadened and enhanced landscape
frontage. However, even if the detailed scheme adopted such a layout, the
character of the frontage would be more akin to a residential street. Overall the
proposal would have a strong urbanising influence and lead to fragmentation of
the boundary hedgerow. For all these reasons I disagree with the appellant’s
analysis that the proposal would result in limited change to the character of
this stretch of Langford Road.
67. The Council has drawn attention to the matter of sensory perception related to
all the activity and movements associated with the proposed residential site
and the introduction of street and other lighting. This marked change from an
arable field with little activity for most of the time to a land use with a
sustained active environment would emphasise the detrimental change in
character to users of the countryside and others in the local community. The
Parish Council in objecting to the proposal described the extension of built form
into the countryside as unacceptable.
68. I recognise that the scheme would comply with other development guidelines
in the CBLCA. The site slopes gently westwards towards Henlow Brook.
Changes to the relatively flat landform would be primarily to accommodate
building plots and achieve access requirements, more especially at the
junctions with Langford Road. This physical effect would be negligible. The
development would provide opportunities for enhancement of vegetation and
watercourses linked to the provision of green infrastructure and surface water
drainage arrangements. There also would be opportunities for additional
planting to strengthen the western, northern and southern boundaries of the
development. The beneficial effect would increase over time as planting
matures. Pedestrian connections from the site out onto Langford Road would
link to the public right of way leading east to the River Ivel.
69. In conclusion, the effect on landscape character would be localised. The loss of
the greenfield to housing development and the associated highway and other
infrastructure would have a harmful effect on the settlement pattern and the
local landscape character. The conservation and any enhancement of perimeter
planting and new amenity planting would be incidental.
Visual impact
70. The appellant’s defined zone of theoretical visibility (ZTV) identifies the land
from which potential views towards any part of the proposed development
would be possible. The ZTV is very limited to the south and north mainly
because of the existing settlement and woodland. It is relatively more open to
the east and west, although even from these directions the subtle variations in
topography and intervening landscape features limit the extent of views. I
walked along all relevant stretches of the public rights of way network and
observed the site from all identified viewpoints as well as from other locations.
Views throughout the year have to be considered, allowing for the differences
in visibility in the months when trees and vegetation are not in full leaf. Also,
the magnitude and type of visual impact would be expected to lessen over time
as new planting has a more beneficial effect.
71. The proposed development would not interrupt the visually sensitive views
identified by the CBLCA. Nevertheless, currently the site forms part of the rural
scene, essentially open farmland, blocks of woodland, field trees and
hedgerows. Farm buildings and dwellings on the edges of settlements are well
integrated into local views.
72. The existing residential development along Langford Road comprises the ribbon
of development north of the junction with Stockbridge Road and some 320
metres to the north the small number of dwellings on the western side of
Langford Road. The visual effects table describes the new housing being seen
in the context of this existing development and linking the two. However, the
new housing would not be confined to a frontage development. The new
housing area would be served by internal access roads and be of a much larger
scale. To describe it as ‘a link’ fails to convey the fundamental visual change
that would result. Consequently, in my opinion the assessed overall visual
effects upon completion and 10 years on are likely to be underestimated for a
number of receptor groups.
73. The visual impact would be experienced mainly by those with a high visual
susceptibility to change, namely residents living in homes adjacent to the site,
people using public rights of way where attention is focused on the countryside
and also the village communities where views make an important contribution
to the landscape setting enjoyed by residents. The views are not of high scenic
value but the network of footpaths and bridleways are important for relaxation
and exercise. Routes close to the site, within easy distance of where people
live, are likely to be the most frequented. The proposed new housing probably
would not be visible from all points of a route. However, the viewpoints where
the impact would be most adverse are close to car parking spots or where
people are likely to stop and pause to enjoy the view. The effect would be of a
much higher order than existing views of properties on the settlement edge
and the very different features of wind turbines and football ground floodlights.
74. Travellers using their own vehicles on the adjacent highways of Langford Road
and Stockbridge Road would be expected to primarily focus on the transport
route and hence would be in the category of low visual susceptibility to change.
However, the site is an integral part of the rural outlook. Users of local buses
would not necessarily focus on the route but be more aware of the landscape
and would be in the medium category. The loss of the site to housing would be
readily apparent to travellers on Stockbridge Road, as well as Langford Road.
75. Therefore, whilst the ZTV is limited to the more immediate surroundings, the
visual impact would affect receptors in the high and medium sensitivity
categories to a large degree.
76. In the appellant’s visual effects table and in subsequent analysis, no beneficial
visual effects were identified. I take no particular issue with the appraisals for
residents north of the site, at Stockbridge Farm or to the north east of Clifton
or for users of public rights of way (Footpaths Clifton 4 and 6). The appraisals
that rely in part on the creation of a link in development, rather than closure of
a gap, underestimate the overall effect (Viewpoints 2, 3, 4 and 5). For some
users of Langford Road and Stockbridge Road the effect is likely to be more
adverse than indicated.
77. Since the original decision, additional evidence has been produced in respect of
users of public rights of way to the north and west of the site and especially
Viewpoint 10. From here I found there is a clear and direct view across to the
site, which blends very easily into the farmed landscape and is seen
predominantly within the context of Baulk Wood to the north and belts of trees
and hedgerows. Farm buildings, dwellings and glimpses of cars were more
peripheral and incidental. The photomontage confirms that the proposed new
housing would act as a visual stop to the view across the field in the
foreground. Whilst maturing vegetation in time would help to soften the view of
the housing when vegetation is in full leaf, there is no photomontage of a
winter view. In my judgement the effect would be greater than the Minor
Adverse in the appraisal.
Conclusions
78. The proposed residential development for up to 135 dwellings, for a site
located in the countryside outside the settlement envelope, conflicts with Policy
DM4. The development would not respect local context or conserve the
countryside character and local distinctiveness. There is conflict with Policies
CS14 and CS16. The proposal would not contribute to and enhance the local
environment and in this respect fails to comply with policy in the Framework.
79. My assessments and conclusions generally are consistent with those of my
colleague in 2018.
Housing contribution
80. The proposal offers the prospect of new homes for the community, including
affordable housing. The central matter in dispute is whether the Council is able
to demonstrate a 5YHLS. The purpose of the 5YHLS is to provide an indication
of whether there are sufficient sites available to meet the local housing need
for the next 5 years23. The answer will inform whether a tilted balance has to
be applied in accordance with national policy in the Framework and also the
weight to be attached to the benefits and disbenefits of the proposed
development.
81. Local planning authorities should identify and update annually a supply of
specific deliverable sites sufficient to provide a minimum of five years’ worth of
housing against their housing requirement set out in adopted strategic policies
or against their local housing need where the strategic policies are more than
five years old24. The appellant and the Council disagree on both the local
housing need figure and the amount of deliverable housing land. The Council
maintains that there is a 6.03 year supply, the appellant 2.58 years.
Local housing need
82. Central Bedfordshire does not have a recently adopted local plan and in this
type of situation the Framework states that local housing need should be
calculated using the standard method set out in national planning guidance25. It
is common ground that the standard method produces a local housing need
figure of 2,428 dwellings per annum (dpa) for Central Bedfordshire.
83. The Council argues that this figure cannot be relied on in Central Bedfordshire
because of problems with the data. The Council submits that the Strategic
Housing Market Assessment (SHMA) is the only robust and reliable assessment
of housing need that is based on a recognised methodology for which national
23 Planning Practice Guidance Housing supply and delivery, Paragraph: 003 Ref ID 68-003-20190722
24 Framework paragraph 73
25 Framework paragraph 73 and foot note 37
planning guidance has been published. The SHMA provides the basis for the
local housing need at 1,600 dpa. There is no dispute that a buffer of 5% should
be added.
84. The appellant submitted that the standard method in national policy should not
be set aside, taking into account the context behind its endorsement and that
the standard method is a key part of delivering the Government’s commitment
to deliver 300,000 homes each year. The national picture shows that Central
Bedfordshire is not unique or even exceptional. In the appellant’s view the
Council’s approach promotes uncertainty, opaqueness and a return to a system
that national policy and guidance has sought to move away from.
85. There are two main areas of dispute that can be summarised as (i) whether or
not a departure from the standard method is justifiable, and (ii) whether the
Council’s SHMA methodology is an appropriate alternative.
86. The Council’s approach and methodology has been scrutinised in a number of
appeals. Those post-dating the revised Framework dated February 2019 have
particular relevance because they come after the clarification of national policy.
The land west of New Road appeal26 is of interest because the decision was
subject to challenge by Gladman Developments Limited. In that case the
Inspector decided that a requirement of 1,600 dpa represented a reasonable
level of local housing need27. The challenge did not proceed beyond the
permission stage and the appeal decision stands. The same Inspector in the
Park Farm appeal (a different appellant) came to the same conclusion, noting
that his finding was consistent with the approach taken by a number of
Inspectors in determining recent appeals28. A very recent decision dated 24
February 2020 also found in favour of the Council’s case29. In this last appeal
the same witnesses appeared in relation to housing need and supply and it
appears similar cases were presented to those I heard. The latest decision
dated 16 March 2020 again supported the Council and found a clear and
convincing justification for the application of a tried and tested method as
defined in the SHMA30.
87. To complete the picture, the Council’s methodology was not considered in any
detail in the decisions for land at Sandy Lane, Potton31, land off Broad Street,
Clifton32 and land off Clophill Road, Maulden33. The two appeal decisions where
the Inspector found against the Council were determined through the written
representation procedure34. I was informed the Council did not submit detailed
evidence on the matter and therefore for current purposes they have much less
significance than the decisions where evidence was probed and tested at a
hearing or inquiry.
88. Consistency in decision making is important to local planning authorities and
developers and to secure public confidence in the development management
26 Appeal ref APP/P0240/W/18/3206495 and W/18/3220640, decision dated 25 June 2019
27 Op cit paragraph 61
28 CD 15.21 Appeal ref APP/P0240/W/18/3204513 decision dated 21 October 2019 paragraph 79
29 Land west of Langford Road, Appeal ref APP/P0240/W/19/3236423
30 Land north of Sunderland Road Appeal ref APP/P0240/W/18/3219213 dated 16 March 2020.
31 CD 15.20 Appeal ref APP/P0240/W/18/3213352 dated 15 October 2019
32 CD 15.23 Appeal ref APP/P0240/W/18/3211229 dated 13 December 2019. As set out in paragraph 52 the
inspector adopted a pragmatic approach in the circumstances and accepted the Council’s position that it can
demonstrate a 5YHLS (which was not to be taken as meaning necessarily agreement with the Council).
33 CD 15.22 Appeal ref APP/P0240/W/19/3223970 dated 30 October 2019
34 CD 14.45 Limbersey Lane appeal ref APP/P0240/W/18/3211551 and CD 14.44 Cobbitts Road appeal ref
APP/P0240/W/19/3219983.
system. Having said that, an inspector must exercise his or her own judgement
and may depart from an earlier decision (whether on the same site or
elsewhere) if there are sound reasons for doing so and they are explained.
Policy context
89. The standard method for assessing local housing need was introduced by way
of a revised Framework published in July 2018. This method is to support the
Government’s aim to ensure local planning authorities plan for the right homes
in the right places in an open, transparent and sustainable way and to ensure
the debate in each area focuses on how to deliver more, better homes rather
than on how many homes are needed35. Following consultation, national
planning policy was clarified in February 2019 and the Government’s objective
of significantly boosting the supply of homes reaffirmed. The standard method
was confirmed to be the most appropriate approach for providing stability and
certainty to the planning system in the short term36. Use of the standard
method is not mandatory but the starting point for the planning process. Where
a local planning authority decides that exceptional circumstances exist to
justify an alternative approach, the expectation is that the Local Plan process
will be the forum for examination. This point is clearly brought out in the
definition of local housing need contained in the Glossary to the Framework.
90. Planning Practice Guidance explains that the standard method uses a formula
to identify the minimum number of homes expected to be planned for, in a way
which addresses projected household growth and historic under-supply. The
method identifies a minimum annual housing need figure37. The 2014-based
household projections are used within the standard method to provide stability
for planning authorities and communities, ensure that historic under-delivery
and declining affordability are reflected, and to be consistent with the
Government’s objective of significantly boosting the supply of homes38.
91. Therefore in the absence of an up to date development plan the expectation of
national policy is that the standard method will be followed and that if a local
planning authority wishes to use an alternative method the debate and scrutiny
should be through the local plan process, not through individual proposals and
section 78 appeals. However, I agree with the Council that whilst national
policy is a material consideration that must be taken into account it is not a
statute that must always be followed. The important point is that clear reasons
must be given for departing from policy.
Methodology
92. The Council has explained consistently throughout, in this and earlier appeals,
its concerns about the standard method conclusions for Central Bedfordshire
and the overestimation of population growth39. The facts are not disputed by
35 Technical consultation on updates to national planning policy and guidance, paragraph 3, October 2018 Ministry
of Housing, Communities and Local Government – GDL1 UPDATE/A Appendix 1
36 Government response to Technical Consultation page 6 February 2019 Ministry of Housing, Communities and
Local Government –GDL1 UPDATE/A Appendix 8 page 6.
37 PPG Housing and economic needs assessment Paragraph: 002 Reference ID: 2a-002-20190220
38 PPG Housing and economic needs assessment Paragraph: 005 Reference ID: 2a-005-20190220
39 Council’s Local housing need proof of evidence, particularly paragraphs 3.1 to 3.12
the appellant40. Rather it is more a matter of interpretation of the data,
including differences on adjustments and the relevance of London Boroughs.
93. A key point is that the official projections, the CLG 2014 projections that
underpin the standard method, do not provide a realistic assessment of
demographic growth for Central Bedfordshire. This is said to be due to
problems with the ONS 2014-based sub national population projections caused
by errors in the ONS mid-year population estimates. A likely underlying cause
is attributed to errors in net migration.
94. To illustrate the point a number of factors or indicators are provided. For
example, the 2014-based sub national population projections indicate Central
Bedfordshire would fall within the top 10% of all local authorities in England in
terms of population growth, with a rate of growth that is more than double the
average. According to the mid-year estimates (MYE) between 2011 and 2015
there was a growth of 18,400 people (4,590 per year) compared to an increase
of 21,600 people (average of 2,160 per year) for the 10 year period 2001 to
2011. In other words, the growth in four years was equal to 85% of the total
growth for the previous ten years.
95. The uncertainty over the MYE for Central Bedfordshire has been recognised by
ONS. Revised mid-year estimates for 2012 to 2016 reduced the official
population estimate for mid-2016 by 2,206 persons, the seventh largest
reduction outside London. In addition, other sources of administrative data
support a conclusion that population is not growing as fast as suggested by the
MYEs, including the Patient Register, school census and pensions data. House
building rates for 2011 to 2015 show a similar picture.
96. In my view the evidence over a range of indicators provides strong support for
the conclusion that the MYEs for the period since 2011 very significantly
overestimate population growth in Central Bedfordshire. In turn the probability
is that the standard method overestimates the local housing need for Central
Bedfordshire. The issue then becomes whether, in the light of this evidence,
there is justification for departing from the standard method when considered
against the background of formulation of national policy and the Government’s
objective to boost housing supply.
97. The Framework states that strategic policies should be informed by a local
housing needs assessment, conducted using the standard method unless
exceptional circumstances justify an alternative approach. I consider the same
benchmark should be applied in the current situation outside of the local plan
process. The Council’s evidence on local housing need refers to the
circumstances in Central Bedfordshire being exceptional, although accepting
that they are not unique. The higher ‘truly exceptional’ test put forward in the
appellant’s oral evidence was shown to have no basis when tested through
cross examination.
98. The Council’s consultant confirmed that in local housing need analysis carried
out by Opinion Research Services (ORS) for over 50 local authorities the kind
of systematic error in the MYEs has only been seen in two areas – Central
Bedfordshire and Aylesbury Vale, and the errors are larger in Central
40 Accepted by their witness in cross examination. Concern was registered but not pursued in any detail about the
Council’s comments on an ongoing ONS research project (point (xii) on page 21 of Council’s Local housing need
proof of evidence).
Bedfordshire. Adjustments to the Aylesbury Vale MYEs have been endorsed by
the Inspector examining the Aylesbury Vale Local Plan.
99. Data was presented to place Central Bedfordshire within the national context in
the form of a set of six tables based on the changes ONS has made to the MYE
figures for all local authorities in England. One finding is that Central
Bedfordshire had the seventh largest reduction to the 2016 MYE (within the top
2.5% of all England local authorities outside London), which represented the
14th largest percentage reduction and the 13th largest reduction to population
change 2011-2016. In addition, there is no area outside London and only
Westminster and Kingston-upon-Thames within London, which ranks higher
than Central Bedfordshire on all six of the measures41.
100. The appellant took issue with matters to do with the ranking and in response
produced other tables, which are said to focus on the extent to which UPC42
and revisions to the MYE have affected the 2014-based household projections.
101. The standard method applies equally to Greater London. Nevertheless, there
is justification to exclude the London Boroughs from the ranking, as the Council
has done, related to the characteristics of the population, the regional
dimension and role of the Greater London Authority in plan making. I also
prefer maintaining a distinction of the two adjustments made by ONS (related
to MYE 2012 to 2016 and to UPC 2001 to 2011) in order to ensure clarity and
transparency of the effect of each adjustment. The alternative method,
involving averaging, promoted by the appellant may well mask significant
differences between the adjustments, as shown by the example of Tendring.
Thirdly, it seems more logical in the ranking to distinguish between positive
and negative changes as opposed to concentrating on size alone. As the
Council explained the two have quite different implications for the application of
policy.
102. In conclusion, there are clear reasons for not applying the standard method
in Central Bedfordshire (the legal test). There is the evidence to show that the
circumstances are exceptional when compared to many other local authority
areas (the policy test).
103. The Council relies on its SHMA as the only robust and reliable assessment of
housing need for Central Bedfordshire. It uses the CLG 2014-based household
projections as the starting point with adjustments to reflect local demography.
As an alternative to the standard method, this approach has several
advantages within Central Bedfordshire. The SHMA is informing the emerging
Local Plan and so brings consistency of approach within the local authority
area. It is in accordance with the transitional provisions made through national
policy and is based on a recognised approach. The Inspectors examining the
plan raised a number of questions related to the SHMA in the hearings last
year43. Most recently, whilst reserving their position, they have indicated that
reconvened hearing sessions will be used to discuss the new evidence related
to the review of the Sustainability Appraisal44. At the present time there is little
indication that the housing requirement will be substantially revisited. The
41 Council’s Local housing need proof of evidence, paragraphs 3.11 and 3.12 and Appendix 1
42 Unattributable Population Change
43 RD5
44 RD17
SHMA was endorsed by the Inspector in the Luton Local Plan, a neighbouring
local authority area. There is consistency in approach.
104. Within the standard method, as step two, the average annual projected
household growth figure is adjusted to take account of the affordability of the
area. In Central Bedfordshire the uplift would be capped at 40%. The Council
confirmed that the uplift is in the order of 15-16% in the SHMA.
105. Linked to this matter, as well as other concerns, the appellant put forward
variations on the standard method, using the 2016 household projections as a
demographic baseline and the standard method’s affordability adjustment.
These ‘hybrids’ produced local housing need figures of 2,195 dpa and 1,942
dpa compared to the 1,600 dpa from use of the SHMA45. In my view these
hybrids are of little assistance because they do not use a consistent method
advocated through national policy, whether as a transitional provision (the
Council’s SHMA) or the standard method. The Government made a very
conscious decision in February 2019 not to take on board the 2016 household
projections.
106. By way of a ‘sense check,’ the Council’s housing need of 1,600 dpa
represents an overall increase in dwellings of over 27% over the 20 year plan
period, which is of a similar level to areas such as Cambridge and East
Hertfordshire. It also would represent a 36% increase in housing provision in
Central Bedfordshire when compared to the period 2001-2011. Housing growth
in the District would not be frustrated, nor would a Government housing policy
objective be undermined.
107. With all the considerations above in mind, at the present time and for the
purposes of this appeal the Council’s assessment of local housing need based
on the SHMA provides the appropriate figure to use in considering whether a
5YHLS can be demonstrated.
108. This finding may be thought to be contrary to the conclusion I reached in an
appeal in Tendring. However, the evidence and cases presented in that appeal
were very different. In particular, the Council post February 2019 did not
advocate a specific methodology or rely on the housing requirement in the
emerging local plan and in effect accepted the use of the standard method.
Agreement was reached between the main parties that Tendring District’s
5YHLS ranged from 3.50 to 4.02 years. The errors linked to unattributable
population change in increasing the local housing need figure were put forward
by the Council as a consideration in deciding how much weight should be
attached to shortfall in the 5YHLS. The reasoning in that decision on the
technical consultation, prevailing national policy objectives and guidance is
consistent with my reasoning in this current decision. Furthermore, I have
approached the evidence and submissions by the main parties in this appeal
with an open mind, which accounts for any perceived slight change in
emphasis.
109. An additional consideration is the outcome of the challenge to the New Road
decision. I know only the details found in the core documents submitted for this
appeal. On that basis the decision by the Secretary of State to defend the
appeal decision, including the Inspector’s reasoning on national planning policy
on housing land supply in the Framework, is significant. A further ground of
45 GDL 1 UPDATE/PS Table 1 page 27
challenge that was defended was the adequacy of the Inspector’s reasoning in
respect of the ‘mix and match’ hybrid approach. While recognising that the
grounds were not subject to a full hearing, the judge’s reasons for refusing
permission were strongly worded.
Land supply
110. ‘Deliverable sites’ is the second component in determining whether there is a
5YHLS. The Glossary to the Framework states that ‘to be considered
deliverable, sites for housing should be available now, offer a suitable location
for development now and be achievable with a realistic prospect that housing
will be delivered on the site within five years’. I regard this as the primary test.
111. In particular, two categories of sites are identified in the definition. In
summary, the first includes all sites which do not involve major development
and have planning permission and all sites with detailed planning permission.
Sites in this group are assumed to be deliverable unless there is “clear
evidence” to the contrary. In the second category clear evidence is required
that housing completions will begin on site within five years. This group
includes sites with outline planning permission for major development,
allocated in a development plan, with a grant of permission in principle or
identified on a brownfield register.
112. The appellant submitted that the Glossary definition of Deliverable
introduces two closed lists of what constitutes deliverable sites. An appeal
decision dated 26 October 201846 is referred to in support of that view.
However, the Inspector’s conclusion was based on the wording of the definition
in the July 2018 Framework, wording that was revised in the February 2019
Framework. Of significance in the current definition is the use of the phrase “In
particular”, which does not signal the lists are closed and all-embracing. In my
view if a site does not fall within either of the two categories it may still be
considered deliverable if it meets the primary test.
113. Planning Practice Guidance, dating to July 2019, includes advice on the type
of evidence expected to demonstrate deliverability, such as current planning
status, firm progress on an application or site assessment work, and clear
relevant information on site constraints47. The emphasis is on site specific
evidence, which indicates that knowledge of local conditions and views of the
stakeholders involved are more likely to be of most relevance as opposed to
studies and research of national trends. The urgency in Government policy also
has encouraged local planning authorities to be pro-active and to engage more
with land owners, developers and housebuilders. This appears to be the case in
Central Bedfordshire, as indicated by the measures and approach adopted by
the Council and the evidence of increased housing delivery over the last few
years. Placed within this context, I have treated the studies and information on
national and regional build out rates produced in the appellant’s evidence with
caution.
114. It was agreed between the parties that the housing land supply statement of
1 July 2019 and the supporting trajectory as of 30 June 201948 would form the
basis of the assessment. Subsequent updated information on progress on sites
46 CD 15.25 paragraph 30
47 PPG Housing supply and delivery Paragraph: 007 Reference ID: 68-007-20190722 Revision Date 22 July 2019
48 CD 15.16 and CD 15.17
has become available, which I will take into account in reviewing the trajectory.
To ignore it would not be consistent with the advice in the PPG to use the latest
available information in decision-taking.
115. The Council has discounted the oversupply of dwellings from its overall
housing requirement. I do not take issue with this approach, especially as the
Council’s approach is to spread oversupply over the whole monitoring period
rather than the five year period as done with undersupply.
116. The Council has published a Housing Delivery Clause Technical Note
(January 2019) with information about a build rate obligation for inclusion in a
section 106 agreement. I have concerns about the necessity of this type of
obligation and how effective this obligation actually would be in the event of
slippage in the programme. The Council was not able to provide any
assurances on how the use of an injunction would be an effective remedy. The
obligation is useful in so far as it is primarily an indication of what the
developer considered to be deliverable when the obligation was executed.
Depending on the circumstances and on other evidence, an obligation may well
amount to clear evidence that the site is deliverable such that housing
completions will begin on site within five years. It is not necessarily or may not
be sufficient assurance as to the timing and number of units completed over
the time period.
Individual sites
117. There are a number of sites where delivery is disputed in one form or
another. Two main considerations have been addressed – whether a site is
deliverable and if so how many units would be completed over the five year
period. The Council has accepted that Land at Steppingley Road and Froghall
Road (50 units) is not deliverable.
Land at Chase Farm (HT005)
118. Outline planning permission for a mixed use development has been granted
on this Council owned site and a masterplan approved, although no reserved
matters have been submitted. The new spine road and other infrastructure will
be provided by the Council and no constraints in their construction have been
identified. There is a programme for marketing and transfer sale of phase 1 (in
the order of 200 dwellings). I am satisfied that the site is deliverable. However,
to expect delivery of homes in 2020/21 is over-optimistic, which the Council
now accepts. Allowing for a delayed start on site by a year results in a
contribution of some 264 homes to the supply (a reduction of 96 from 360 in
the trajectory).
North of Houghton Regis (HT057)
119. I have focused on the next five years rather than anticipate delivery beyond.
In my view the Council has provided clear evidence that the site is deliverable,
having regard to the planning status (outline planning permission, approved
design codes and masterplan), infrastructure provision and the involvement of
a consortium representing landowners and house builders. As to delivery rates,
the Council has moderated the figures suggested by the consortium to give a
more realistic outlook. Even if there is some slippage at the outset, the latter
part of the five year period has leeway to enable the projected 616 homes to
be delivered.
North of Houghton Regis (HT058)
120. There was a degree of agreement on this site, narrowing down the area of
dispute to parcels 2, 5, 7 and 8 (860 dwellings in total).
121. Since the trajectory date of 1 July 2019, reserved matters have been
approved for parcel 7, which adds support to the projected delivery of 255
homes on this parcel.
122. The Council emphasised that delivery has commenced, which would lend
momentum to the building programmes. No constraints were identified in the
provision of infrastructure including the main road network. The appellant’s
evidence to a large extent focuses on build rates across the site as a whole. My
preference is to look at the information on individual parcels, in view of the
involvement of named housebuilders and knowledge of the Council’s
discussions with each of them.
123. Parcel 2 would provide some 109 homes. Reserved matters had not been
submitted but were expected and would be guided by the approved design
code. There is a good prospect of the delivery of these homes within the five
year period.
124. Parcel 5 is anticipated to provide some 160 dwellings. The intent to progress
development was indicated with a reserved matters application last year, albeit
it was withdrawn due to design concerns. That being so a resubmission would
be expected to progress more smoothly to enable delivery to be achieved as
projected.
125. A reserved matters application was submitted for Parcel 8 in September
2019. The Council confirmed in oral evidence that it had not been determined.
Nevertheless, I consider this application, together with the more general
evidence on site development, justifies the inclusion of 336 homes in the
supply.
126. To conclude, I agree with the total of 960 homes for the site referred to as
North of Houghton Regis (HT058). The inclusion of 83 homes on parcel 1
(HT058(i)) and 260 homes on parcels 3 and 4 (HT058(ii)) was not disputed and
there is no reason for me to consider them further.
East of Leighton Linslade (Clipstone Park) (HT078)
127. The appellant considers that the 287 dwelling 5 year contribution from this
site should be deleted from the trajectory. It was confirmed that three sites at
Clipstone Park (HT078a, b and c) were not disputed.
128. This large site has outline permission for a mixed use urban extension
including some 1,201 homes. Development has commenced and 65 homes
delivered to date. At the inquiry the Council confirmed that two reserved
matters applications have been approved, updating the understanding of the
appellant. The main constraint to development in the short term appears to be
the construction of an access road, although the Council was confident that
matters would be resolved in the next six months. Bearing in mind that the
trajectory indicates delivery beginning with 50 homes in 2021/22, I see no
need to delete the relatively modest contribution.
Wixams (HT117)
129. This large scale residential development extends into Bedford Borough.
Village 1 with 952 dwellings is complete and to that extent the site overall is
considered deliverable. The relevant matter for current purposes is whether
292 dwellings (primarily Villages 2 and 3) should be included in the trajectory.
The appellant points to a lack of progress on approval of reserved matters and
unrealistic build out rates. The Council primarily relied on approval of a design
code and reserved matters for strategic infrastructure at Village 2 and
discussions of further reserved matters application(s). Design coding and
ongoing discussions with the promoter are underway for Village 3. The
evidence justifies inclusion of 292 units bearing in mind that the first
completions are shown for 2021/22 with increasing delivery thereafter.
130. The contribution of 417 units from Village 4 and Land Parcels 4.2, 4.1 and
4.3 (sites HT117a, 117b, HT117c) is agreed.
Wixams Southern Extension (Thickthorn Park) (HT237)
131. The Council makes provision for a contribution of 265 dwellings from this
site, which benefits from an outline planning permission (dated 1 November
2019) for 650 dwellings. The fact that the planning permission post-dates 1
July 2019 does not in itself exclude the site from being considered deliverable.
132. The Council rely to a large extent on a build rate programme within the
section 106 agreement that requires delivery of a minimum of 240 dwellings in
five years. Seemingly a housebuilder is on board and pre-commencement work
is being undertaken, which improves the prospect of homes being delivered on
site within the 5 year period. The Council has pushed back the expected
commencement of delivery to 2021/2022.
133. The appellant drew attention to the fact that reserved matters approval for
the proposed countryside park has to be in place before commencement of
development and that the s106 agreement includes provision for extension of
the building programme.
134. On the basis of the evidence, the trajectory is unduly optimistic on delivery
and the contribution should be reduced by 65 units.
Former Flitwick Leisure Centre (HT136)
135. This is a Council owned site and a priority for development. Outline
permission was granted in April 2019 for 37 dwellings, 95 extra care housing
apartments, a residential care home and associated communal facilities. A new
leisure centre has already been provided. No constraints regarding
infrastructure are identified. Any delays in bringing forward the site related to
ensuring the development meets the needs in Flitwick. The Council anticipates
delivery would commence in 2022/23 with 37 dwellings. The appellant has
questioned viability and demand for the type of housing in the scheme but this
point is based more on a previous withdrawn application.
136. Despite being identified as a priority site there is a lack of positive evidence
of firm progress towards commencement of development and ultimately
delivery on homes. Consequently the 132 dwellings should be removed from
the supply.
Land opposite The Lane and Lombard Street (HT148i)
137. Outline permission has been granted for 40 dwellings. In oral evidence the
Council confirmed that no information was available on a potential
housebuilder, the submission of a reserved matters application or progress on
discharging conditions. The one factor which the Council relied on for its
inclusion in the trajectory is the build rate programme that requires all 40 units
to be built in five years. To my mind that alone, in the context of an absence of
other evidence, does not amount to the necessary clear evidence. The site
should be deleted.
Land opposite the Playing Fields and Mill Lane (HT148b)
138. The position is similar to site HT148i in so far as the Council relied on the
build rate agreement. There is very little apart from pre-application advice to
suggest firm progress on reserved matters. The site (62 dwellings) should be
deleted.
Land east of Biggleswade (HT208)
139. Outline permission has been granted for 1,500 homes. The Council has
agreed a delivery statement with the site promoter. A build rate programme
also has been agreed. The appellant referred to outstanding issues around
gaining access to the land, matters which were highlighted by the Inspectors
examining the emerging Local Plan. The Council acknowledged that a start on
site will not occur until 2023/24 and accepted a reduction of 420 dwellings from
537 to 117. However, there is not the necessary clear evidence that housing
completions will begin on site within five years. The 537 dwellings should be
deleted.
Windfalls
140. The appellant considers that the inclusion of a windfall allowance in addition
to inclusion of small unallocated sites has resulted in double counting and that
there should be a reduction of 151 dwellings.
141. By way of background a Windfall Topic Paper (January 2018) demonstrated
that windfall sites have made a consistent and significant contribution to overall
housing delivery and are likely to continue to do so, even with the delivery of
large allocations. Therefore there is justification for including a windfall
allowance in the housing supply.
142. In the trajectory there are two entries – all small sites with planning
permission at 30 June 2019 and a small sites windfall allowance. Provision is
made in the windfall allowance for the delivery of a total of at least 140
dwellings a year. There is no double counting. The trajectory reflects the
number of dwellings with planning permission on small sites (894 net) and the
average number of completed dwellings per year (rounded down to 140).
Conclusions
143. The total supply of 10,077 dwellings in the 1 July 2019 trajectory should be
reduced by 982 dwellings, resulting in a supply of 9,095 dwellings (compared
to the Council’s adjusted supply of 9,511 dwellings and the appellant’s figure of
6,274). Clearly this reduction is much less than the appellant’s total reduction
of 3,503 dwellings49 but more than the Council’s accepted reduction of 566
dwellings50.
144. The Council is able to demonstrate a 5YHLS, amounting to 5.7 years. A
5YHLS is demonstrated (5.4 years) even if the five year requirement and buffer
is revised to make no allowance for oversupply. The tilted balance is not
engaged.
145. The development of the appeal site is not justified or necessary at this time
because there are sufficient sites available to enable meeting the local housing
need over the next five years. This conclusion reaffirms the conflict with Policy
DM4.
146. The conclusions on supply generally do not differ significantly from those of
my colleagues in the two appeal decisions issued after the close of the inquiry,
who also concluded that the Council is able to demonstrate a 5YHLS.
Other planning matters
Agricultural land quality
147. A soil resource and agricultural quality survey of the red and blue land,
carried out in 2016, found that 3% was grade 2 (in the south), 70% of the land
was sub grade 3a and 27% of the land was sub grade 3b. A subsequent
commentary51 concluded that the best and most versatile (BMV) agricultural
land is dominant in the eastern part of the District and much of the poorer land
is restricted to rural locations not adjoining settlements. The appeal site was
considered to be of no better agricultural quality and probably slightly poorer
quality that many sites on the edge of settlements in the Ivel Valley.
148. The agricultural land continues to be actively farmed for crops. The land has
economic benefits, albeit not quantified. Nevertheless, the site falls below the
20 ha threshold for consultation with DEFRA. Because of the high proportion of
BMV land within Central Bedfordshire its loss has been necessary to provide
adequate land for housing requirements.
149. The loss of this area of BMV land for residential development would not
weigh significantly against granting permission in the event of a lack of a
5YHLS. However, I have concluded that is not the position at the current time
and so the agricultural quality of the land is a factor in favour of resisting the
proposal.
Affordable housing
150. A planning obligation provides for 35% of the dwellings built on the site to
be used for affordable housing. This level of provision complies with Policy CS7,
which seeks 35% or more.
151. Affordable housing is being examined through the Local Plan process. A
report to the Council’s Executive in October 2019 highlighted the serious
shortfall of affordable and social rented dwellings in the District – 925 units are
required per annum compared to an average new supply of 217 dwellings52.
49 GDL2 UPDATE/SP Table 20
50 RD21
51 RD3
52 CD 15.15 paragraph 4
Against this background, clearly the affordable housing would be a benefit of
the scheme. Differing views have been expressed in previous appeal decisions
as to the weight given to the benefit that does no more than comply with the
development plan policy53. I note that in the Clifton appeal decision, where
very considerable weight was given to the social benefit, at least 35% of the
dwellings would be affordable. In this case the minimum amount of affordable
housing sought by the development plan policy would be forthcoming on a site
where the appellant has no concerns about viability due to the very strong
prices paid for land in the District54. In conclusion, I attach moderate weight to
the affordable housing benefit.
Sustainable settlement
152. Henlow is identified as a Large Village in the Settlement Hierarchy within the
Core Strategy and is a sustainable settlement for additional housing growth.
153. The village has a range of local facilities, including a village shop/post office,
a village hall and public houses, which the appellant has shown to be within 2
kilometres of the site. However, the National Design Guide defines walkable as
generally being no more than a 10 minute walk (800 m). In my opinion that is
a more reasonable distance for most people and is appropriate to apply in
Henlow. Public transport is available, with hourly services from the bus stops
nearest the site. Arlesey station has frequent main line services but is not
within a convenient walking distance. The opportunity to cycle to the station
was based on distance rather than a consideration of the characteristics of the
route and its practicality.
154. My conclusion is that the accessibility of the site and the opportunity for
future residents to use alternative forms of transport to the private car would
not be as good as described in the supporting documents to the proposal. This
is in large part due to the location of the site north of the village and the size of
the proposed development. The development does not have the full support of
Policy CS4 that promotes sustainable travel patterns.
155. Additional capacity would be necessary at Raynsford Lower School (early
years and lower school education) and at Pix Brook Academy and / or Henlow
Academy (Middle School and Upper School education). The planning obligations
provide for the payment of financial contributions linked to first occupation of
dwellings to assist in creating the necessary additional capacity. This approach
is in accordance with Policy CS2 and in compliance with Policy CS3.
Green infrastructure, open space, sport and recreation
156. There is the potential for the development to enhance green infrastructure in
the locality, which would be addressed through reserved matters and a detailed
landscape scheme. The illustrative plans provide some indication of the location
and scope of such enhancement. Planning obligations include contributions
towards public footpath improvements and towards links between the site and
Baulk Wood.
157. The blue land is now proposed as meadow land with some woodland
planting, which in my view suggests a different type of open land to the
original proposal for a community park.
53 CD 15.23 paragraphs 30, 31
54 Oral evidence by Mr Still
158. There would be sufficient space within the site to provide a children’s play
area(s). Sports and recreation facilities off-site would be improved through
financial contributions towards the refurbishment of changing rooms at Saxon
Pool Leisure Centre, the provision of a skate park in Henlow and improved
facilities at Langford Football Club including the refurbishment of the
clubhouse. The Council has raised no concerns over these proposals.
159. To conclude, developer contributions to improve facilities in response to the
additional demands from the proposed scheme are secured through a planning
obligation, as required by Policy CS2. Policy CS3 is met in so far as appropriate
infrastructure would be provided to support a growing community. The
probable net gain in green infrastructure and contributions for improvements
comply with a criterion of Policy CS17.
Other matters
160. Economic benefits would include construction spend and employment during
the building programme. Input into the economy from residents of the scheme
would apply over the long term. Whilst not seeking to minimise the value to
the local economy, in the overall picture these benefits are not out of the
ordinary and in this instance have limited weight. Planning Practice Guidance
advises that it would not be appropriate to make a decision based on the
potential for the development to raise money for a local authority55. Therefore
a New Homes Bonus is not a consideration that has any weight. This conclusion
is similar to that of my colleague in the Clifton decision56.
161. The safeguarding of the living conditions of residents in dwellings adjacent to
the site would be a matter for consideration at detailed design stage.
162. The assessments on highway safety and capacity, ecology, arboriculture,
archaeology, flood risk and drainage strategy did not identify any issues that
could not be addressed through the reserved matters application(s) or by the
use of planning conditions. The Council confirmed in the statement of common
ground that such an approach was appropriate.
163. I have considered representations on highway capacity by interested parties
but in the absence of any technical evidence to support the objection there are
no highway reasons for rejecting the proposal.
Planning conditions and planning obligations
164. The proposed planning conditions would be directed towards securing
additional design details but would not overcome the identified harm to
character and appearance to enable the development to proceed.
165. To meet the statutory tests planning obligations must be necessary to make
the development acceptable in planning terms, directly related to the
development and fairly and reasonably related in scale and kind to the
development.
166. The affordable housing planning obligation provides for a level of affordable
housing required by Policy CS7. The affordable housing scheme would enable
the Council to approve details of the type, tenure size, mix and location of
affordable housing units, also in accordance with Policy CS7. Sufficient
55 PPG Determining a planning application paragraph: 011 Reference ID: 21b-011-20140612
56 CD 15.23 (ref APP/P0240/W/18/3211229) paragraph 35
information has been provided on education provision, sports and leisure
facilities to show the relevant obligations satisfy the tests. The provision of the
necessary waste and recycling facilities for each dwelling would be adequately
covered by the contribution. The obligation related to open space transfer and
works is essential to ensure the amenity spaces and play areas are
incorporated into the overall scheme.
167. The contributions towards upgrading local bus stops, providing cycle racks
and a traffic regulation order have not been specifically justified in the
documentation. However, the measures would encourage safety and use of
sustainable travel modes in direct response to the development and appear to
be proportionate in amount.
Planning Balance
168. The development of up to 135 dwellings and all associated infrastructure
would not respect local context or conserve the countryside character and local
distinctiveness. Visual impact would be harmful too. The outline proposal for
this site within the countryside conflicts with Policies CS14, CS16 and DM4, the
most important development plan policies for determining the appeal. Even
allowing for the moderate weight attached to Policy DM4, compliance with
Policies CS2 and CS7 and the ability to resolve outstanding technical matters
and design details at the reserved matters stage, the development is not in
accordance with the development plan when read as a whole.
169. Turning to the Framework, the tilted balance is not engaged. Having
considered all the evidence on the 5YHLS there is currently a sufficient amount
and variety of land available to meet housing needs in the District. There is no
imperative to bring forward the appeal site. The development is not necessary
to maintain or enhance the vitality of the rural community. The proposal would
result in significant harm to local character and a small loss of BMV land. The
ability to promote a genuine choice of sustainable travel modes is constrained
by the site’s location, especially in relation to the heart of the village. Additional
affordable housing would be the primary benefit. Balancing the social,
environmental and economic aspects of the development, the proposal does
not have the overall support of the Framework and would not promote
sustainable development in the rural area.
170. There are no other considerations that indicate a decision other than in
accordance with development plan.
Conclusion
171. For the reasons given above the appeal should be dismissed.
Diane Lewis
Inspector
APPEARANCES
FOR THE LOCAL PLANNING AUTHORITY:
Ms Saira Kabir Sheikh QC
She called
Mr David Clarke David Clarke Chartered Landscape Architect and
BSc(Hons) PD Arb (RFS) CMLI Consultant Arboriculturist Limited
MArborA
Mr Jonathan Lee Managing Director of Opinion Research Services
BSc(Hons)
Mr Phillip Hughes Principal of PHD Chartered Town Planners
BA(Hons) DipMan MCMI
MRTPI
FOR THE APPELLANT:
Mr Peter Goatley, of Counsel57 Instructed by Gladman Developments Limited
He called
Mr Timothy Jackson Director FPCR Environmental Design Ltd
BA(Hons) DipLA CMLI
Mr Tom Baker BA(Hons) Associate Director, Savills
MSc MRTPI
Mr Alex Roberts BSc Director DLP Planning Limited
Associate MRTPI
Mr Christopher Still Senior Planning and Development Director,
BSc(Hons) MRICS Gladman Developments Limited
DOCUMENTS submitted at the inquiry
RD1 Signed statement of common ground September 2019
RD2 Appendix 7 to Proof of Evidence of Mr Baker
RD3 Commentary on land quality in the eastern part of Central
Bedfordshire
RD4 Residential planning permissions in surrounding area
RD5 EXAM 33 Central Bedfordshire Local Plan and email
correspondence
RD6 Council’s Rebuttal to proof of Alex Roberts
RD7 Outline opening submissions on behalf of the appellant
RD8 Opening statement on behalf of the Council
RD9 R (oao Matthew Davison) v Elmbridge Borough Council [2019]
EWHC 1409 (Admin)
RD10 List of suggested planning conditions
RD11 Deed of Variation (draft)
RD12 Walk 4 Langford Meadows and Stanford Lock footpath route
RD13 Walk 6 Langford Landscape
RD14 Unsigned Deed of Variation
RD15 CD 15.30 Appeal decision APP/P1506/W/19/3220201 Land
south of Long Road Mistley (Tendring District Council)
RD16 Central Bedfordshire Local Plan Examination correspondence
dated 09.01.20
RD17 Exam 84: letter from Inspectors to CBC on Exam 83
57 Appointed Queen’s Counsel after the close of the inquiry
RD18 Build Rate Timetable
RD19 Revised Table 19: Summary of impact of changes to land
supply
RD20 Plan of proposed development, Broad Street Clifton
RD21 Table 19 land supply (revised by CBC)
RD22 Housing Delivery Clause Technical Note January 2019
RD22/ Build Rate Obligations
A
RD23 Risby v East Hertfordshire District Council and others [2019]
EWHC 3474 (Admin)
RD24 R (oao Bates) v Maldon District Council [2019] EWCA Civ 1272
RD25 Closing submissions on behalf of Central Bedfordshire Council
RD26 Outline Closing Submissions on behalf of the appellant